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OPINION OF JOHN MARBURY, ESQ.. 



IN REFERENCE TO 



THE ELECTION HELD IN GEORGETOWN, D. C, 

FEBRUARY 38. 1859. 



RECORDER OULD'S OPINION 

IN REPLY TO 

QUESTIONS ASKED BY JUDGES OF 2D PRECINCT. 



SUPPLEMENTAL RETUM 



MADE BY A 



MAJORITY OF JUDGES OF THE 2D PRECINCT. 



WASHINGTON: 

PRINTED BY R. A- WATERS. 
18S9. 



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OPINION OF JOHN MARBURY ESQ. 

My opinion has been asked in reply to the following ques tions 
having reference to the late election : 

1st. What are the duties required by law of the clerk oF the 
Corporation in relation to the returns made by the Judges of Elec- 
tion in the several precincts ? 2nd. When said Judges have signed 
their returns, and filed them with the Clerk, can they, at any time, 
amend the same in order to correct mistakes therein ? How 
should such corrections be made ? With whom filed ? And what 
the duty of the Clerk in respect thereto. 

3rd. What measures can betaken and by whom, to ascertain the 
the true result of the Election ? 

To the 1st enquiry I answer, that the law requires the Clerk to 
receive from the Judges of Election and keep safely the returns 
made by them, and further than this, nothing more is required of 
him expressly. He is not authorized to sum up the votes con- 
tained in the separate returns, and ond to declare who has received 
the largest number and has been elected. But I think, by fair 
inference, it is his duty to send the returns which relate to the 
election of the members of the Board of Aldermen and Board of 
Common Council to those Boards respectively, in order that each 
may be enabled to judge of the Election of its own members. 
And those returns which relate to the election of the Mayor should 
be sent to the Convention formed by the meeting of the two Boards, 
that it may judge of the election of the person presenting himself 
and asking to be admitted to their presence, to take the oath pre- 
scribed to be taken by the person who has been elected to the 
office of Mayor. 

The Charter contains no provision for ascertaining and declar- 
ing the result of the election, either of the members of the Boards, 
or of the Mayor, the returns of the Judges of Election, four in 
number, are to belodged with the Clerk for safe keeping only, but 
as it is made the duty of each of the Boards to judge of the elec- 
tion of its own members, and of the two Boards in joint meeting 
or convention, to admit to their presence the person chosen to be 
the Mayor, that he may take his oath of office. They cannot act 
understandingly unless they have possession of the returns and be 
allowed to ascertain and decide who has been elected, and to deal 
with such person accordhigly. 

To the 2nd enquirey I answer, that the Judges of Election may 
at any time before their returns have been acted on, file a supple- 
mental return in order to correct any mistake, error or omission 
which may occur in the original report, especiall}'' a mere clerical 
error or mistake in the computation of figures, such supplemental 
report or return should be signed by the Judges or a majority of 
of them and lodged with the Clerk for safe keeping, and should 
be laid before the Board of Aldermen or Board of Common Coun- 
cil, or the convcntin of the two Boards, as the case may require, when- 

Otn. 
W. L. Shoemaker 
7 S '06 



ever he is called upon to produce the original report, that the whok 
subject matter may appear and be enquired into. 

To the 3d inquiry I answer, that each Board is authorized 
to enquire into the Election of its own members and to admit 
them to seats or reject them, and cause a new election, or in case 
of a contested election, to decide between the contestants, and 
admit the one or the other as may be judged right after going 
into a full enquiry of all subjects connected with the Election. 

So in case of a contested election of Mayor, I think the con- 
vention of the two Boards having the returns before them may, 
by a committee, examine all questions relating to them and as- 
certain the true result, and admit the person by them believed to 
have the greatest number of votes, to their presence, to take the 
oath of office, and deny that privilege to the person they believe 
-not to have been elected. 

The Mayor cannot be qualified except in the presence of the 
two Boards in convention met ; as no other person or body is au- 
thorized to sum up the returns and declare the result of the Elec- 
tion, it must devolve on the Convetition before whom the oath of 
office is to be taken, to do so : and to see that the person claim- 
ing to have been elected was, in fact, elected 

JOHN MARBURY. 

I should add, that the decision of the Convention of the two 
Boards, in relation to the election of the Mayor, would not be 
conclusive and finally binding on the person against whom such 
decision may be made — he vrould still be entitled to appeal, by a 
motion to the Judges of the Circuit Court, to decide the contro- 
versy. 

J. M. 



Letter of the Judges of Election,2nd Precinct, to Robert Ould Esq. 

Recorder. 

Georgetown, March 7A, 1859. ' 
Sir : You will please give us your opinion on this sheet, whether 
the Judges of Election in a precinct of this Corporation, have 
not the right to make a supplemental report before the original 
report has been submitted to the Corporation, and hand the same 
to the Clerk in correction of a clerical error which said Judges 
believe to have occurred, and claim of the Clerk, that the supple- 
mental report shall be received by him as part of the Election 
returns and be transmitted to the Corporation. 

JOHN H. WILSON, 
R. A. BDMONSTON, 

Judges of Election, 2d Precinct*. 
To R. Ould, Esq., 

Recorder. 



TRE RECORDER'S REPLY. 

My opinion is, that the Judges of the Election can send in what 
papers they please, provided they claim them as returns. They 
are judges of elections, and therefore what papers ihey send 
in to the Clerk purporting to be returns, must be received for 
what they are worth. The effect of such papers, and whether they 
are, properly, returns, are very different questions from the right of 
the Judges to file them. On those subjects I give no opinion. I 
allude only to the right of the judges to file a paper which they 
allege to be a return. Of the legal effect of that paper purporting 
to be a return, Avhether it would have the effect of correcting any 
former paper purporting to be a return, I say nothing. 1 have 
confined myself simply to answering the question, as to the right 
to send in the return. I feel myself bound to answer this ques- 
tion, it having been propounded to me by officers and agents of 
th€ Corporation. 

ROBERT OULD, 

Recorder,. 



Supplemental Report of the Judges of Election for the Secoind 

Precinct, 

Georgetown, March 4tA, 1859. 

The subscribers, Judges of Election for the Second Precinct, 
make this supplemental report, in addition to that heretofore 
filed with the clerk, which we ask may be taken as part, and in 
correction, of the same. The Judges further reporting state, 
that since filing their original report of the election in the 2d 
Precinct, they have discovered by examining a duplicate tally of 
the votes taken in that Precinct, kept by Mr. Edmonston, one of 
the Judges, that for Mayor, (R. R. Crawford,) twenty tallies and 
three votes were extended, one hundred and twenty-three, where- 
as the same ought to have been extended, one hundred and three. 

We therefore make this, our supplemental report, stating, that 
for Mayor, R. R. Crawford received but one hundred and three 
votes in the Second Precinct at the election held on Monday last, 
the 28th ult., and not one hundred and twenty-three as before 
reported, and beg leave to correct our first report filed with the 
clerk in that particular. 

JNO. H. WILSON, 
R. A. EDMONSTON, 

Judges of Election ^d Precinct* 



LIBRARY OF CONGRESS 




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